Nguyen v Minister for Immigration

[2019] FCCA 240

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 240

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the Tribunal failed to give the applicant an opportunity to present arguments or evidence – whether the applicant was denied procedural fairness – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 476

Migration Regulations 1994 (Cth), sch.3, sch.2, cl.820.211

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Applicant: MINH TAM NGUYEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1876 of 2017

Judgment of: Judge Emmett

Hearing date: 14 November 2018

Date of Last Submission: 3 December 2018

Delivered at: Sydney

Delivered on: 13 February 2019

REPRESENTATION

Solicitors for the Applicant: Mr Michael Jones
(Parish Patience Immigration Lawyers)

Counsel for the Respondents: Mr Timothy Reilly

Solicitors for the Respondents: Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1876 of 2017

MINH TAM NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 16 May 2017 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 26 July 2016 refusing the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (“Partner Visa”).

2. The relevant background and the Tribunal’s decision are accurately summarised in the submissions of counsel for the first respondent as follows:

   “Background

   2. The applicant is a male citizen of Vietnam, who on 17 July 2014, applied for a Partner (Temporary) (Class UK) visa on the basis of his spousal relationship with Ms Alexandra Uyen Nguyen: CB 1-92.

   3. It was a criterion for the grant of the visa that where an applicant does not hold a substantive visa at the time of the application, the applicant must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are “compelling reasons” for not applying those criteria: cl 820.211(2)(d) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Criterion 3001 required that the application be made within 28 days from the “relevant day”, which in this case, was the last day the applicant held a substantive visa. On 26 July 2016, the delegate refused to grant the visa, finding that the applicant did not meet cl 820.211(2)(d) and that there were no compelling reasons to waive criterion 3001: CB 134-163.

   4. The applicant applied to the Tribunal for review of the decision. The applicant, sponsor, and other witnesses appeared at a hearing before the Tribunal on 9 May 2017: CB 286-288.

   5. The Tribunal affirmed the delegate’s decision on 16 May 2017.

   Tribunal decision

   6. The Tribunal found the applicant’s visa was a Student visa that ceased on 4 August 2009 and that the applicant remained in Australia unlawfully from 4 August 2009 until he lodged a Partner visa application on 17 July 2014 ([7]). As it was not in dispute that the applicant did not have a substantive visa at the time of application, the Tribunal identified that the issue was whether there were compelling reasons for not applying the criteria in Schedule 3 to the Regulations ([11]). The Tribunal found that the visa application had been lodged more than 28 days from the date he last held a substantive visa and that he did not meet criterion 3001 ([12]). The Tribunal had regard to the applicant’s claim that he remained unlawfully in Australia because he needed money to support his sick mother and family in Vietnam; however it was not satisfied that the applicant would be unable to support his mother and family on return to Vietnam and did not accept that those claims were compelling reasons ([17]).

   7. While the Tribunal accepted that the applicant and sponsor met more than six-and-a-half years ago, that they lived together prior to their marriage, and had been in a genuine spousal relationship for more than three years, the Tribunal considered that a genuine spousal relationship was the basic requirement for a Partner visa application and found that the parties did not satisfy the Tribunal that the longevity of their relationship was a compelling reason ([18]). The Tribunal considered the applicant’s claim that he could not maintain his spousal relationship if he left Australia to be “perplexing” as the evidence contradicted his claim to be in a spousal relationship. The Tribunal was not satisfied that the applicant’s possible inability to maintain his ongoing relationship was a compelling reason ([19]). The Tribunal had regard to the sponsor’s claim that she “fear[ed]” for the applicant should he return to Vietnam, however as the applicant had not provided the Tribunal with any information about any threat against him and was not satisfied that this was compelling reason ([20]). The Tribunal was not satisfied that the applicant’s family unit would suffer psychological and material hardship if the applicant departed Australia. It considered the applicant’s evidence that he worked on a cash basis while he was unlawfully in Australia and that the parties lived with the applicant’s aunt and provided a minimal amount of rent. It found that should the “family unit” fall into financial difficulties, they could approach the relevant government body for assistance. It encouraged the parties to seek assistance from medical professionals ([21]).

   8. The Tribunal did not accept as a compelling reason, the sponsor’s claim that she could not go to Vietnam because of her studies, however it considered that the sponsor was not required to depart Australia. The Tribunal understood that the uncertainty for the timing for processing offshore Partner visa applications was a matter of concern. The Tribunal did not accept that financial difficulties arising from the applicant’s departure was a compelling reason, having regard to the applicant’s lack of knowledge about the parties’ financial affairs ([22]). The Tribunal considered the evidence that the applicant supported the sponsor and her family in the form of $90 per week in rent and while it accepted that he may not be able to continue to pay the rent, it was not satisfied that the sponsor would be unable to pay the rent. The Tribunal considered the applicant’s continuing to work while he was unlawful and was not satisfied that this disregard for Immigration law or his inability support the sponsor or her family while offshore, were compelling reasons ([23]).

   9. The Tribunal did not accept that the sponsor’s business or study commitments or the support that the applicant may provide, or the support that the parties may provide to their families through the sponsor’s business, were compelling reasons. It placed weight on the evidence that the sponsor started her business three years prior to the marriage and her studies, one year before the marriage ([24]). The Tribunal did not accept that the applicant’s departure would mean that the parties would not be able to have children, observing that the sponsor was 22 years old and the applicant, 29 years’ old and that the evidence before it was that the sponsor did not have children so that she could study and manage her business ([25]). The Tribunal did not accept as a compelling reason that the sponsor would be required to support the applicant if he were to return to Vietnam as there was no evidence as to why he could not support himself ([26]). The Tribunal accepted that their separation would cause the parties challenges, however it was not satisfied that the parties’ separation was a compelling reason ([27]). The Tribunal did not accept the claim that there were no immediate relatives of the applicant if he were to return to Vietnam. It observed that there was no evidence that his three adult siblings in Vietnam could not assist the applicant ([28]). The Tribunal accepted that the sponsor was asthmatic and affected by other medical conditions, and that the applicant may have provided her with support and assistance. It encouraged the sponsor to be guided by her medical professionals during the time of separation but was ultimately not satisfied that this was a compelling reason ([29]). The Tribunal found that there were no compelling reasons to waive the Schedule 3 criteria and that the applicant did not meet cl 820.211(2)(d)(ii) ([30]). Accordingly it affirmed the delegate’s decision.”

The proceeding before this Court

1. The applicant was represented by his solicitor, Mr Michael Jones, at the hearing before this Court. Mr Jones confirmed that the applicant did not rely on Ground 1 of the application and relied only on Ground 2 as follows:

   2. The Tribunal failed to give the Applicant a meaningful opportunity to give evidence and present arguments in relation to all of the issues in the review.

   Particulars

   (a) The Tribunal considered it to be an issue in determining whether there were compelling reasons to waive the Schedule 3 criteria that the Applicant's family unit could "approach the relevant government body for assistance". This issue was not raised in the delegate's decision and was not at any time put to the Applicant by the Tribunal to allow him to give evidence or present arguments in relation to it.

   (b) The Tribunal also considered it to be an issue that the family could seek assistance from their medical professionals. This issue was also not raised in the delegate's decision and was not at any time put to the Applicant by the Tribunal to allow him to give evidence or present arguments in relation to it.

2. Essentially, Mr Jones contended that the Tribunal failed to give the applicant an opportunity to present arguments or evidence in relation to issues that were not raised with the applicant, thereby denying the applicant procedural fairness in accordance with the principles identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156 at [35].

3. Mr Jones referred to the applicant’s claim that his family unit in Australia would suffer psychological and material hardship if he was to return to Vietnam; that the Delegate had not dealt with this claim; and the Tribunal only questioned the applicant and his sponsor briefly about it.

4. Mr Jones submitted that the Tribunal did not raise with the applicant the extent to which the claimed hardship could be alleviated by recourse to social welfare or medical assistance. Mr Jones submitted that the Tribunal considered the possibility of such recourse to be dispositive in relation to its finding that those circumstances did not give rise to compelling reasons for not applying the schedule 3 criteria.

5. In particular, Mr Jones referred to the following two paragraphs in the Tribunals decision record:

   “21. This claim is that the applicant's family unit would suffer psychological and material hardship if the applicant departed Australia. As discussed previously in this decision, the Tribunal understands when partners are separated from each other, changes occur in the normal circumstances. In this case, the applicant did not have permission to work. He disregarded this and worked on a cash basis. The parties live with the applicants' aunt and provide a minimal amount in rent. Should the applicants "family unit" fall into financial difficulties, the Tribunal suggests that they approach the relevant government body for assistance. Should psychological assistance be required for the applicant's family the Tribunal would encourage them to seek assistance from their medical professionals. The Tribunal is not satisfied that these are compelling reasons not to apply the Schedule 3 criteria.

   …

   29. … The Tribunal accepts the medical information provided and accepts that the sponsor suffers from the medical conditions as claimed and that the applicant may have provided the sponsor with support and assistance. It encourages the sponsor to be guided by her medical professionals during any time of separation from the applicant; during any asthmatic distress or when she requires medical assistance for her conditions. The Tribunal is not satisfied that this is a compelling reason not to apply the schedule 3 criteria.”

   (Emphasis added)

6. The applicant contends that the Tribunal erred in failing to give him an opportunity to give evidence and present arguments on its consideration that the applicant’s family unit could “approach the relevant government body for assistance”; and its consideration that “the sponsor be guided by her medical professionals during any time of separation from the applicant”.

7. Essentially, the applicant submits that the Tribunal should have raised with the applicant at the hearing the issue of the availability of welfare and medical assistance.

8. The first respondent submits that the Tribunal’s conclusions, as expressed above, were obviously open on the known material and were no more than thought processes.

9. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at paragraph 9, French CJ and Kiefel J stated as follows:

   “Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.”

   (Emphasis added)

10. In SZBEL at paragraph 47, the Court stated that:

    “Where… there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”

    (Emphasis added)

11. The Tribunal’s suggestion in paragraph 21 that the Tribunal “suggests” that the applicant’s family approach the relevant government body for assistance, I do not accept to be a finding adverse to the applicant or open to doubt or not obviously open on the known material.

12. The Tribunal’s observations are no more than endeavours to provide a possible avenue of assistance to the applicant without the Tribunal intending to rely on any particular outcome of pursuing the suggested enquiry about government assistance.

13. Similarly, encouraging the sponsor to be guided by her medical professionals during any time of separation from the applicant is intended, on a fair reading, to be no more than an endeavour to express empathy with the sponsor’s potential difficulty. It is an entirely innocuous encouragement to the sponsor to be guided by her medical professionals.

14. Such comments as are made by the Tribunal in paragraphs 21 and 29, the subject of the applicant’s complaints, are not capable of giving rise to any jurisdictional error. They are not findings made by the Tribunal. They are no more than an expression of the Tribunal’s thought processes.

15. Again, in another gratuitous comment by the Tribunal, the Tribunal also stated that it “encourages the parties to communicate with each other during any separation”. Another thought process.

16. The Tribunal is not required to give its thought processes as is made clear in SZBEL at [48], which is as follows:

    “48. Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry[24]:

    "the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

    Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”

17. A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the applicant’s claims in detail with him at a hearing in considering whether compelling reasons existed such that the Tribunal should exercise its discretion to waive the requisite criteria because circumstances existed which would constitute compelling reasons for not applying the schedule 3 criteria.

18. The Tribunal considered the applicant’s claims for the waiver in detail. The Tribunal provided cogent reasons for the findings it made that were open to it on the evidence and material before it and did not lack an intelligible justification. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or, unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

19. In the circumstances, the Tribunal made findings that were open to it on the issue of whether compelling reasons existed for not applying schedule 3 and upon which it based its conclusion that it was not satisfied that there are compelling reasons for not applying the schedule 3 criteria. In such circumstances, the applicant did not meet cl.820.211(2)(d)(ii) of the Regulations and, accordingly, the Tribunal affirmed the decision under review.

20. Accordingly, the Tribunal’s decision is not affected by jurisdictional error.

21. The proceeding before this Court should be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  13 February 2019